A Federal Court judge has denied an application by optical retailer Specsavers for an interim injunction against competitor The Optical Superstore from running what Specsavers claims is misleading advertising.
In his summing up of a hearing on 25 June, Justice Ryan said: “I have come to a clear view that interlocutory injunctive relief should not be granted. The motion for that relief must therefore be refused. I shall give directions for a speedy trial of the application and order that the costs of each party of and incidental to the motion for interlocutory relief be costs in the cause.”
Specsavers is testing new “clarity in pricing” amendments to the Trade Practices Act by launching legal action against The Optical Superstore for what it claims is misleading advertising of its prices for glasses, frames and prescription lenses.
In its application to the Federal Court, Specsavers claimed its rival engaged in misleading and deceptive conduct over particular frames it advertised for sale at 70 per cent off or 40 per cent off usual prices.
Specsavers said in its court application that contrary to those representations, the spectacle frames were not heavily discounted and that in one advertisement the Optical Superstore offered a complete set of glasses – containing frames and prescription lenses – at a price that appeared to be for the whole item when it was for the frames only.
In Federal Court documents lodged in June, Specsavers argued that the Melbourne-based Optical Superstore with 59 outlets throughout Australia had breached three sections of the Trades Practices Act, and sought a range of injunctions against The Optical Superstore’s advertising and promotion as well as damages and costs.
In part of his judgment, Justice Ryan said: “The question is therefore whether the evidence currently before the Court reveals that The Optical Superstore’s advertisements contain any contravening representation of the relevant type. In my view, they do not. It is plain on the face of each advertisement that the percentage of discount or reduction comes “off” when the consumer elects to purchase lenses and spectacles as a package. It is true that the words “with the purchase of prescription lenses” appear at the bottom of the “box” format of each advertisement but that is not unusual and the words are clearly legible.
Attention is drawn to them in the body of the text by way of asterisk. In my view, on the present state of the evidence, a prospective purchaser acting reasonably and in pursuit of his or her own interests would not be misled or deceived by anything conveyed by each advertisement read as a whole.”
Justice Ryan rejected a number of assertions made by Specsavers including that: “The Optical Superstore’s advertisement would, even prima facie, be likely to conclude that the advertised discounts of 70 per cent and 40 per cent were available without the purchase of prescription lenses or represented a reduction from some previous or normal price at which The Optical Superstore had offered or sold the relevant frames.”
He went on to say: “However, on the view which I consider would most readily be taken by an ordinary reader of The Optical Superstore’s advertisements, they do not compare prices of the relevant spectacle frames with ‘their former or future prices’… the comparison which more readily suggests itself is between the price of a particular frame without the purchase of prescription lenses and the discounted or ‘percentage off’ price of the same frame purchased together with prescription lenses.”
In denying Specsavers’ application for an interim injunction against The Optical Superstore’s advertising, Justice Ryan said he considered Specsavers’ case to be weak and that if Specsavers did ultimately lose its case, the damage done to The Optical Superstore, if an interlocutory injunction was granted, would be too great.
“In short, I am not persuaded by the evidence so far before the Court that any consumer acting reasonably and in pursuit of his or her own interests would be misled or deceived by the advertisements of The Optical Superstore,” Justice Ryan noted.
The trial will be heard in December on a date to be fixed.
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